Towards Religious Institutionalism? The Future of the Regulation of Religious Institutions in Taiwan
39 Pages Posted: 8 Nov 2017
Date Written: November 5, 2017
This article analyzes a newly emerging approach to the autonomy of religious institutions in Taiwan’s constitutional jurisprudence developed by Justice Chen Shin-Min of the Constitutional Court of Taiwan. In his concurring opinion in Judicial Yuan Interpretation No. 728, Justice Chen suggests that religious associations occupy a distinctive place in the ROC Constitution and thereby deserve a higher level of constitutional protection which is not enjoyed by other voluntary associations. This view is in contrast to an underlying assumption in the Court’s previous jurisprudence on freedom of religion, namely, that the norms and activities of religious groups are presumptively subject to the authority of state law. The divergent understandings of the authority of state law in relation to religious institutions in Taiwan’s current constitutional jurisprudence parallel the ongoing debate in the American legal scholarship over the idea of “religious institutionalism.” I discuss different perspectives proposed in this debate and argue that, in light of Taiwan’s specific circumstances, the approach developed by Ira Lupu and Robert Tuttle--which claims that religious institutions are entitled to special treatment in law for their activities that are intimately connected with their distinctively religious quality--deserves more of our attention. I conclude by commenting on the ways in which both Justice Chen’s approach and the traditional assumption of the authority of state law over religion can be modified on the basis of Lupu and Tuttle’s theoretical arguments.
Keywords: Religious Institutions, Constitutional Court of Taiwan, J. Y. Interpretation No. 728, Religious Institutionalism, Distinctive Treatment for Religion
Suggested Citation: Suggested Citation